Marking a special occasion, such as a birthday, wedding or holiday, with food and gift giving are age old traditions. In some cultures, special occasion foods and gifts have been enhanced by hiding small trinkets, candies, or more unique gift items inside a prepared food, such as cake, prior to serving so that the gift is a surprise to the recipient. One prior method has been to mix gift items into cake batter prior to baking, but the gift is then exposed to high heat and moisture during baking. Thus, another method is to remove the cake from its pan after baking, and then turn the cake upside down to manually insert the gift item into the cake from the bottom. However, the cake is at risk of being damaged, so that the cake has a less appealing appearance when displayed for the special occasion. Another disadvantage of both of the aforementioned methods is that the gift could be damaged by a knife or other like instrument when cutting or serving portions of the food.
One example of such a special occasion food item is the King Cake, which is popular in New Orleans, France, Belgium and other parts of the world between January 6th (Twelfth Night or the Epiphany) and Mardi Gras, the last day before Lent. A King Cake is a baked confection or pastry having a trinket baked inside of it, and the finder of the trinket is anointed “king” for the forthcoming year. Historically, trinkets have routinely been non-food items such as a plastic or ceramic or porcelain trinkets, sometimes in the shape of a doll. But the difficulty with hiding an inedible surprise into a cake is that the finder could choke on the item, or could damage a tooth. So to avoid that danger, bakeries in the United States have been selling King Cakes without any trinkets, or by providing the trinket separately, outside and alongside of the cake.
In the United States, the Federal Food, Drug, and Cosmetics Act prohibits the manufacture or introduction or delivery into interstate commerce of an adulterated food. 21 U.S.C. § 331. A food is deemed to be adulterated if it is a confectionery and has partially or completely imbedded within it a non-nutritive object, unless the US Food and Drug Administration (FDA) has issued a regulation recognizing that the non-nutritive object is of practical functional value to the confectionery product and would not render the product injurious or hazardous to health. 21 U.S.C. § 342(d)(1). Import Alert 34-02 was issued by the FDA when it became “aware of a product called “Kinder Surprise Eggs”, and similar articles containing imbedded, non-nutritive objects, being offered for sale in the United States. The imbedded non-nutritive objects in these confectionary products were considered to pose a public health risk as the consumer may unknowingly choke on the object.” Import Alert 34-02. Based on the Import Alert, FDA field personnel are instructed to detain import of any such adulterated foods without physical examination. Id.